The Seller’s Failure to Notify the Buyer of a Death by Overdose in a Building: Fraud?

This post, published on Éditions Yvon Blais’ blog on latent defects on Feburary 10, 2017 (FR), which discusses the judgment in Girard v. Dufour (Full Text | Fiche Quantum), explains that a seller’s failure to notify the buyers that an overdose death occurred in the building does not constitute something that can objectively affect the value of a property, but rather something that can subjectively affect the value of a property, which the seller is not obliged to disclose.

Despite the fact that the seller failed to disclose that an overdose death had occurred in the building three (3) years prior to the sale to the buyers, who had posed no questions to this effect, the Court dismissed the buyers’ application for the cancellation of the sale due to fraud.

Specifically, the Court found that the seller had not used disloyal tactics, applied undue pressure to finalize the sale, or committed any concealment regarding the death in the immovable, contrary to what occurred in Fortin v. Mercier (Full Text | Fiche Quantum), which was the subject of a previous post published on Éditions Yvon Blais’ blog on latent defects on January 17, 2017, in which the seller intentionally and actively took measures to conceal the fact that two deaths had occurred in the immovable in the context of a suicide pact, in addition to having deliberately lied about it, which led the court to order the cancellation of the sale due to fraud.

In this decision, the court reminds us that a seller has the obligation to disclose everything that could objectively affect the value of a property, such as serious problems with the property itself (for example, issues with the foundation or roof), but a seller is not obliged from the outset to disclose anything that could subjectively affect the value of a property, but rather only if the buyer asks specific questions regarding matters that could qualify as such or manifests fears or phobias related to said matters.

The judgment in Girard v. Dufour therefore tells us there is no general obligation for a seller to disclose the occurrence of a death in a building unprompted.

If we reconcile this decision with the judgment in Fortin v. Mercier, a suicide or a violent death constitute elements that objectively affect the value of an immovable, which must be disclosed, while a simple death in a building, even by overdose, constitutes, in principle, an element that subjectively affects the value of an immovable, and is not automatically subject to the seller’s obligation of disclosure.